Legal Currents: Jurors punished for using social media?

Currently, the United States imprisons more than 2.3 million of its citizens.This incarceration rate means that 1 out of every 100 United States citizens is in jail.

Since we already imprison people at a rate that some estimate is 10 times that of other Western democracies, I would suggest that it’s time to stop criminalizing trivial infractions. For example, it’s hard to believe that jurors are being jailed for using social media during trials. And no, I am not making this up.

Last month, a Florida juror in a personal injury case was sentenced to 3 days in jail for contempt of court. His transgression? Sending a Facebook “friend” request to a defendant in the case.

In another case, during the summer of 2011, a Texas man sent a “friend” request to the plaintiff in the personal injury lawsuit for which he was a juror. After learning of his actions, the court sentenced him to 2 days of community service.

Most recently, in New Jersey, in a criminal case where a jury foreman conducted Internet research about the case, the judge held in contempt of court and fined him $500. In his Order, Superior Court Judge Peter E. Doyne suggested that Internet-based tools were such a danger to a fair and impartial trial that the Model Criminal Jury Charges needed to be revised to include possible punishments for noncompliance with judicial instructions.

The court wrote: “(T)his court rejects the notion the American courtroom, with its constraints and controls developed over the centuries, with its methodical and deliberate means of proceeding, is somehow incompatible with or outdated in today’s world of high-speed information on demand. Indeed, the proliferation of electronic information renders the sterilized atmosphere of a courtroom even more important … To better communicate the importance of obedience to the court’s instructions, it may be appropriate to further explain reasons for the prohibition on juror research and, even, possible punishments for disobedience.”

Yes, you read that correctly. This judge is suggesting that because the medium for juror misconduct has changed, we should now punish jurors who are simply doing what jurors have been doing since the dawn of jury trials: violating court prohibitions against conducting research or discussing the issues presented at trial.

The only difference is that jurors are now using newfangled technology and “the Internets” instead of reading the newspaper, conducting research via the library or an encyclopedia, or discussing the case with spouses or neighbors.

Juror conduct hasn’t changed. What has changed is the medium through which the jurors are violating the court order. The Internet and mobile devices simply make information more easily accessible and more easily disseminated, but the information has always been available for the taking and the ability to share it has likewise always existed.

To suggest that harsher penalties should be imposed for juror misconduct occurring via the Internet is nothing more than a knee jerk reaction to technological change cloaked in purported concern for the sanctity of the judicial system.

Jurors behaving in a predictably human fashion is nothing new. What is notable is the reaction of judges unwilling to accept change. Upping the ante for digital curiosity and imposing jail time, community service and fines for online research and discussion while failing to impose the same sanctions for similar offline misconduct is nothing less than outrageous.

Like it or not, the 21st century is here. Computers, the Internet and mobile devices aren’t going away. Unless you happen to possess a time machine, there’s no going back. So, enough already. Stop the Luddite insanity and accept reality.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.